Labour Law 101: Your internal labour law/HR function

[Citizen X]

.5.2.2 in the event that the company recognises a union for purposes of Recognition as defined in the Labour Relations Act and the employee constitutes part of the bargaining unit, submit the dispute for resolution in terms of the dispute procedures agreed between the union and the company. Additional expectations 1. The objectives of work standards as well as the disciplinary code is to provide all employees with the company’s expectations 2. Employees are expected to familiarize themselves with all rules regulations, policies and procedures 3. WORK EXPECTATIONS AND STANDARDS The company has expectations of the conduct of its employees, these expectations are based on mutual respect and loyalty and are set out herein as a reasonable guideline to all employees. The norms and expectations are as follows: 3.1 Conduct 3.1.1 Employees are expected to comply .with the various rules, practices and obligations contained in their contracts of employment; all reasonable and lawful instructions given by a superior must be complied with. 3.1.2 Employees should behave in an orderly and lawful manner with acknowledgement and respect to the rights of other employees, the facilities of the company and the clients and customers of the company. 3.1.3 Employees are expected to treat one another with dignity and respect and no discrimination or harassment in any form will be tolerated or condoned. 3.1.4 Assault, verbal or physical, as well as abusive, obscene and racist language will not be tolerated; the company reserves the right to evict from its premises any employee who make himself guilty of assault. 3.1.5 The property, equipment of the company and personal effects of fellow employees should be treated with the necessary care and respect; no such property or effects may be removed from the premises without the proper authorisation. The company therefore reserves the right, for the protection of both fellow employees and the company, to search and inspect work stations, lockers (where applicable), vehicles, bags and packets of employees whilst they are on the premises of the company; all such searching will be conducted within the parameters of human dignity and respect; the person of an employee may also be searched on leaving the premises at any time; and at any other point if reasonable suspicion of misconduct is present. 3.1.6 There are proper procedures in place i.e. the grievance procedure, the appeal procedure to deal with matters which employees feel adversely affect their employment environment. Employees are thus expected to observe these procedures and to render their services according to the contract of employment. 3.1.7 Access to the premises outside normal working hours or for overtime is subject to obtaining the proper authorisation and/or permission. 3.1.8 All tools and equipment (with the exception of those purchased by the employee) remain the property of the company and employees are expected to return or leave behind such equipment on leaving the employ of the company; In addition, employees may not remove such property of the company without the proper authorisation and/or permission. 3.1.9 Employees are expected to further the interests of the company to this end, no confidential information relating to the business may be disclosed to anybody not in the employ of the company; employees are also prohibited from doing any other work without the express permission of the company. 3.2 Relating to the work environment 3.2.1 The working environment should reflect safe and hygienic practices; all employees should therefore give effect to proper housekeeping and safety guidelines. 3.2.2 The company places strong emphasis on safety in the workplace. To give effect to this commitment, no employee may without the proper authority bring any liquor or non* prescribed drugs of any form onto the premises, or report or commence with his duties whilst under the influence of liquor; an employee should inform his superior of his condition and will then be sent home and on the employee's return to work the appropriate disciplinary (or related) action will be taken. Employees will be subject to a verification procedure if there is a suspicion of being under the influence of liquor or drugs. Any unauthorised possession of drugs or alcohol will always be viewed in a most serious light. To this end the company reserves the right to search employees entering and leaving the premises, or to refuse access to the premises. 3.2.3 All accidents or damage to equipment or property, even those of a minor nature, should be immediately reported to the employees' superior; all safety rules and practices should at all times be obeyed. 3.2.4 A safe working environment also dictates that no employee shall enter the premises of the company or that of a client whilst in the possession of firearms or offensive weapons unless permission in writing has been given by a Director of the company. 3.3 Relating to attendance and standards of work 3.3.1 Every employee plays a particular role in the company; your absence from work therefore creates problems both operationally and to your fellow employees. Employees are therefore expected to be at work in accordance with their contract of employment, or to report for overtime unless there is a valid reason for such absence, under which circumstances the employee will inform his superior of the reason for and the duration of such absence as soon as possible, but no later than the end of the working day on the first day of absence. In addition, employees are expected to observe the company's sick leave policy in regard to the submission of medical certificates. 3.3.2 Any other absence from work should be preceded by the proper permission being granted. 3.3.3 Sick leave is only to be utilized for genuine illness of the employee; the company reserves the right to expect the employee to submit himself for medical evaluation by a company appointed doctor if excessive sick leave is taken. 3.3.4 The company expects all employees to achieve reasonably achievable work standards when executing their duties; the company will embark on corrective counselling action in the event of an employee failing to achieve such standards; continued failure could result in the termination of services. 4. DISCIPLINARY CODE Any conduct which may adversely affect the relationship between the employer and the employee, the relationship between employees, the relationship between employees and customers, suppliers or clients, may be investigated in terms of the company's Disciplinary Procedure. The Procedures are also applicable where such conduct has occurred after hours and off the company premises. The aforementioned transgressions and possible sanctions serve as a guideline to all employees to illustrate the effect and the seriousness of such on the employment relationship. Please note that the possible sanctions serve only as a guideline as the merits and circumstances of each case must be considered; and therefore a more or less severe sanction may be imposed than those indicated in this Disciplinary Code. Employee Signature Date: 18 June 2005

[Citizen X]

Disciplinary Hearing

Mr Masongo was suspended and issued with a notification of disciplinary enquiry. The disciplinary Hearing was scheduled for 3 January 2014.

[Citizen X]

NOTIFICATION OF DISCIPLINARY HEARING Business name: MotorFit Petrol Station Date: 25 December 2013 INITIATOR’S NAME: Warren Peters 1.EMPLOYEES NAME: Bongani Masongo CONTACT DETAILS 0785625376 2.EMPLOYEE’S ID NO/STAFF NO: 356876 DATE OF DISCIPLINARY HEARING: 3 January 2014 VENUE OF HEARING: Boardroom TIME OF HEARING: 10:00 CHARGES IF MORE THAN ONE CHARGE OR LENGHTY IN DESCRIPTION ANNEX TO A4 PAGES AS ANNEXURE 1 1. Misconduct):Fraud alternatively unauthorised intentional making of a misrepresentation which causes actual prejudice or which is potentially prejudicial to the company in that on the 24 December 2013 you engaged in a fraudulent transaction by fuelling two motor vehicles with one fleet card, alternatively unauthorised manipulation of company systems and processes. This has caused a breach in the employer/ employee trust relationship 2. (Misconduct)Gross Dishonesty: In that on the 24 December 2013 you engaged in a transaction contrary to the company rules and failed to act in good faith by bringing this customer’s dishonest intentions to management’s attention by collaborating with a customer transaction by fuelling two motor vehicles with one fleet card 3. 4. EMPLOYEE’S RIGHTS KINDLY TAKE NOTE THAT:- 1. You have the right to be represented by an employee of your choice and/or you the right to be represented by a Union member or official(It’s your duty to arrange this); 2. You have the right to call witnesses and cross examine company witnesses 3. You have a right to an interpreter, you must request this 4. You have the right to state your case and be heard 5. You have the right to appeal any decision(s) taken in the outcome of the disciplinary hearing Initiator name: Warren Peters Signature Date: 25/12/2013 Employee Name: Bongani Masongo Signature Date: 25/12/2013 Witness Name: Thandi Tsabalala Signature Date: 25/12/2013 WHERE EMPLOYEE REFUSES TO SIGN Witness name: Signature: Date:

[Citizen X]

MotorFit Petrol Station (PTY) Ltd SUSPENSION LETTER
To	Bongani Masongo
From	Warren Peters. Branch Manager
Subject		Suspension
Date		25 December 2013
Dear Mr Masongo, You are hereby informed that you are suspended with immediate effect pending the outcome of a disciplinary hearing to be held on 3 January 2014 Kindly take note that all your benefits are still applicable i.e. salary. Regards, Warren Peters

[Citizen X]

The chairperson found him guilty on both charges and summarily dismissed him.

Exercise


1. Why is it preferable to have a disciplinary code and procedure?
Schedule 8 Item 3(1) provides that

All employers should adopt disciplinary rules that establish the standard of conduct required of their employees. The form and content of disciplinary rules will obviously vary according to the size and nature of the employer’s business. In general, a larger business will require a more formal approach to discipline. An employer’s rules must create certainty and consistency in the application of discipline. This requires that the standards of conduct are clear and made available to employees in a manner that is easily understood. Some rules or standards may be so well established and known that it is not necessary to communicate them.

2. When is it appropriate to dismiss an employee for misconduct?

Schedule 8 Item 4 provides that

Generally, it is not appropriate to dismiss an employee for a first offence, except if the misconduct is serious and of such gravity that it makes a continued employment relationship intolerable. Examples of serious misconduct, subject to the rule that each case should be judged on its merits, are gross dishonesty or wilful damage to the property of the employer, wilful endangering of the safety of others physical assault on the employer, a fellow employee, client or customer and gross insubordination. Whatever the merits of the case for dismissal might be, a dismissal will not be fair if it does not meet the requirements of section 188.

3. What does section 188 of the LRA state?

Section 188 of the LRA states:

(1) A dismissal that is not automatically unfair, is unfair if the employer fails to prove -
(a) that the reason for dismissal is a fair reason -
(i) related to the employee’s conduct or capacity; or
(ii) based on the employer’s operational requirements; and
(b) that the dismissal was effected in accordance with a fair procedure.
(2) Any person considering whether or not the reason for dismissal is a fair reason or whether or not the dismissal was effected in accordance with a fair procedure must take into account any relevant code of good practice issued in terms of this Act.

4. What do you understand by substantive fairness?

Substantive fairness is a dismissal based on a fair reason. The employee who has been dismissed must be aware of the rules, regulations, policy and procedure of the company. This is why it is so important to have a disciplinary code and procedure. Employees need to have some indication of the consequences of his/her actions. There must be a clear reason for the sanction of dismissal. This reason can stem from the law, the employment contract and the disciplinary code and procedure. There must be sufficient proof of misconduct on a balance of probability.



Schedule 8 Item 3(5) &(6) provide

When deciding whether or not to impose the penalty of dismissal, the employer should in addition to the gravity of the misconduct consider factors such as the employee’s circumstances (including length of service, previous disciplinary record and personal circumstances), the nature of the job and the circumstances of the infringement itself. The employer should apply the penalty of dismissal consistently with the way in which it has been applied to the same and other employees in the past, and consistently as between two or more employees who participate in the misconduct under consideration

5. What do you understand by procedural fairness?

Procedural fairness is a dismissal based on a fair procedure. The employee must be informed of the charges against him. Vague charges such as ‘dishonesty,’ are not advisable, the charge should state a date, time, offence. The employee must be given sufficient time to prepare for the disciplinary hearing. The employee must be given an opportunity to state his case and allowed representation. The employee’s case must not be prejudged.

Schedule 8 Item 4 provides

(1) Normally, the employer should conduct an investigation to determine whether there are grounds for dismissal. This does not need to be a formal enquiry. The employer should notify the employee of the allegations using a form and language that the employee can reasonably understand. The employee should be allowed the opportunity to state a case in response to the allegations. The employee should be entitled to a reasonable time to prepare the response and to the assistance of a trade union representative or fellow employee. After the enquiry, the employer should communicate the decision taken, and preferably furnish the employee with written notification of that decision.
(2) Discipline against a trade union representative or an employee who is an office-bearer or official of a trade union should not be instituted without first informing and consulting the trade union.
(3) If the employee is dismissed, the employee should be given the reason for dismissal and reminded of any rights to refer the matter to a council with jurisdiction or to the Commission or to any dispute resolution procedures established in terms of a collective agreement.
(4) In exceptional circumstances, if the employer cannot reasonably be expected to comply with these guidelines, the employer may dispense with pre-dismissal procedures.

[Citizen X]

Explain the guidelines for dismissal for misconduct based on the two charges, you may use one charge as an example to save time

1. Misconduct):Fraud alternatively unauthorised intentional making of a misrepresentation which causes actual prejudice or which is potentially prejudicial to the company in that on the 24 December 2013 you engaged in a fraudulent transaction by fuelling two motor vehicles with one fleet card, alternatively unauthorised manipulation of company systems and processes. This has caused a breach in the employer/ employee trust relationship
2. (Misconduct)Gross Dishonesty: In that on the 24 December 2013 you engaged in a transaction contrary to the company rules and failed to act in good faith by bringing this customer’s dishonest intentions to management’s attention by collaborating with a customer transaction by fuelling two motor vehicles with one fleet card

[Citizen X]

1. Misconduct):Fraud alternatively unauthorised intentional making of a misrepresentation which causes actual prejudice or which is potentially prejudicial to the company in that on the 24 December 2013 you engaged in a fraudulent transaction by fuelling two motor vehicles with one fleet card, alternatively unauthorised manipulation of company systems and processes. This has caused a breach in the employer/ employee trust relationship
Schedule 8 item 7 provides that
Any person who is determining whether a dismissal for misconduct is unfair should consider -
(a) whether or not the employee contravened a rule or standard regulating conduct in, or of
relevance to, the workplace; and
(Trainers Comment: Mr Masongo did contravene a rule regulating conduct in the workplace in that he breached item 3 of the disciplinary code and procedure namely “3 Theft, fraud, unauthorised possession of company property, unauthorised manipulation of company processes and systems, gross dishonesty.”
(b) if a rule or standard was contravened, whether or not -
(i) the rule was a valid or reasonable rule or standard;
(Trainers Comment: The rule or standard of fraud and dishonesty is a valid rule and standard)

(ii) the employee was aware, or could reasonably be expected to have been aware, of
the rule or standard;
(Trainers Comment:The employee was aware of the rule or standard in that he was handed a copy of the disciplinary code and procedure and he signed it)
(iii) the rule or standard has been consistently applied by the employer; and
(Trainers Comment: All employees in this company are dismissed for fraud and dishonesty)

(iv) dismissal with an appropriate sanction for the contravention of the rule or standard.
(Trainers Commentismissal was indeed an appropriate sanction in that the employer/employee trust relationship was breached)